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When the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) became law in 2022, advocates for employee rights praised the measure as a chance for victims of sexual misconduct to have their day in court. Usually, the EFAA is invoked in situations where plaintiffs were assaulted or harassed by workplace supervisors or co-workers. A recent case however tested whether the bar on mandatory arbitration provisions also extends to matters where the claim against an employer relates to sexual abuse that did not occur on the job. 

In Polen v. API Group Life Safety, plaintiff Lisa Polen alleged that she was sexually abused on multiple occasions by a former partner. She reported two separate incidents of sexual assault to her supervisor, Brittany Noblin, in October and December 2024. Due to her fears of continued domestic violence, Polen requested to work from home, but Noblin replied by expressing concern about Polen’s attendance. Shortly thereafter, Polen told Noblin that she had suffered a miscarriage and requested a pregnancy accommodation. API terminated Polen’s employment the next day. 

Upon taking the job with API, Polen had signed an arbitration agreement, which the company sought to enforce after she filed suit accusing the company of violating her employment rights. Examining the language of the EFAA, Judge Michael A. Simon of the U.S. District Court for the District of Oregon held that the bar on mandatory arbitration could be applied in this case. 

According to the EFAA’s text, a claimant can invalidate a pre-dispute arbitration agreement for “a case relating to” a sexual assault or sexual harassment dispute. Judge Simon said that if Polen pleaded a nonfrivolous claim relating to sexual assault, the EFAA was enforceable, regardless of the fact that the underlying alleged attack had no connection to Polen’s work at API. 

Employees should know that if a dispute with an employer relates to sexual assault or harassment, you may elect court over arbitration under the EFAA, even if it is not a classic example of workplace mistreatment. Preserve written reports, accommodation requests and attendance communications and consult counsel promptly to protect deadlines.

Kardell Law Group represents workers in a wide range of sexual harassment and abuse claims. For a consultation regarding your circumstances and potential legal remedies, please contact us today.